Claimant's motions seeking an extension of time to file a reply to defendant's answer denied. The answer asserts no counterclaims and a reply is not authorized.
|Claimant short name:||H.S.|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-94366, M-94388|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||H.S., Pro se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||September 13, 2019|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for injuries sustained as the result of an alleged assault by correction officers at Green Haven Correctional Facility (CF) on July 18, 2018. Claimant now moves, in two separate motions for an extension of his time to submit a reply to defendant's Verified Answer.(2) Defendant has not opposed the motions.
CPLR 3011 provides, in relevant part: "There shall be a complaint and an answer. An answer may include a counterclaim against a [claimant] . . . There shall be a reply to a counterclaim denominated as such . . . There shall be no other pleading unless the court orders otherwise" (emphasis added). The Rules of the Court of Claims permit a defendant to
"include a counterclaim in its answer, in which case the claimant shall serve a reply . . . service of all responsive pleadings shall be made within 40 days of service of the pleading to which it responds. The original and two copies of each responsive pleading, together with proof of service, shall be filed with the clerk within 10 days of such service"
(22 NYCRR § 206.7 [a]). Where an answer does not contain a counterclaim, a reply "is not only unnecessary, but is in fact inappropriate" (Scott v State of New York, UID No. 2003-031-017 [Ct Cl, Minarik, J., Apr. 9, 2003]; see Raymond Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 46 AD3d 1251, 1253 [3d Dept 2007]; Olsen & Chapman Const. Co. v Village of Cazenovia, 30 AD2d 738, 738 [3d Dept 1968]), and the Court is not authorized to grant an extension of time to serve such a pleading (see Smiley v State of New York, UID No. 2014-010-085 [Ct Cl, Ruderman, J., Dec. 17, 2014]). Here, defendant's Verified Answer contains denials of the allegations in the amended claim and asserts twelve affirmative defenses, but contains no counterclaims requiring a responsive pleading from claimant (see Verified Answer, filed June 24, 2019). As a result, claimant is not authorized serve a reply to defendant's Verified Answer without a court order, and his motions seeking an extension of time to do so will be denied.(3)
Accordingly, it is
ORDERED, that claimant's Motion No. M-94366 is DENIED; and it is further
ORDERED, that claimant's Motion No. M-94388 is DENIED.
September 13, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 132135, filed October 15, 2018;
2. Amended Claim (denominated "Amended Complaint") No. 132135, filed May 24, 2019;
3. Verified Answer, filed June 24, 2019;
4. Claimant Response to Defendant's Answer (undated), filed August 5, 2019;
5. Motion for Extension (M-94366), sworn to July 10, 2019;
6. Affidavit of Service of H.S., sworn to July 10, 2019;
7. Motion for Extension (M-94388), sworn to July 10, 2019;
8. Affidavit of Service of H.S., sworn to July 10, 2019.
1. Because the claim alleges that claimant was the victim of a sexual assault, the Court has amended the caption of the claim sua sponte in accordance with Civil Rights Law § 50-b (1).
2. Claimant filed his first motion seeking an extension of time to reply to defendant's Verified Answer with the Clerk of the Court of Claims on July 15, 2019 (M-94366), and he filed his second motion seeking identical relief with the Clerk of the Court of Claims two days later, on July 17, 2019 (M-94388). Upon examining the motion papers, it appears that claimant in fact filed the identical motion twice and that Motion No. M-94366 is simply a photocopy of Motion No. M-94388, which appears to be the original copy of the motion.
3. While these motions were pending, claimant filed with the Court a copy of what appears to be the reply to defendant's Verified Answer that is the subject of these motions (see Claimant's Response to Defendant's Answer (undated), filed August 5, 2019). Although claimant's filing and service of the reply would ordinarily result in dismissal of his motions as moot (see Fraser v State of New York, UID No. 2016-040-090 [Ct Cl, McCarthy, J., Oct. 24, 2016]), claimant failed to comply with the requirements of 22 NYCRR § 206.7 (a) that he file the original reply with two copies and proof of service on the Attorney General, and therefore his motions will not be denied as moot.